Citation Nr: 1803701	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  12-05 656	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a low back disability.  


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel


INTRODUCTION

The Veteran had honorable active service from August 1980 to August 1983.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Milwaukee, Wisconsin, Regional Office of the Department of Veterans Affairs (VA) which determined that new and material evidence had not been received to reopen a claim for service connection for a back disability.  In February 2012, the RO determined that new and material evidence had been received to reopen a claim for service connection for a back disability and denied the claim on the merits.  In August 2016, the Board determined that new and material evidence had been received to reopen a claim for service connection for a low back disability and remanded the claim to the Agency of Original Jurisdiction for additional development of the record.  


FINDING OF FACT

In November 2017, VA was notified that the Veteran had died in October 2017.  


CONCLUSION OF LAW

Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the Veteran's claim at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (1994).  This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).  

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106 (2017).  

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Any request must be filed not later than one year after the date of the Veteran's death.  38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017).  A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a).  38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(a) (2017).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b) (2017).  


ORDER

The appeal is dismissed.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs